Kittredge v. Neumann

26 N.J. Eq. 195

• Court: New Jersey Court of Chancery
• Decided: May 15, 1875
• Status: Published

Opinion

The Chancellor.

The question presented is, whether the lien of the builder of the stable is prior to that of the mortgages of Mrs. Ivittredge and Mrs. Howe. As for Mrs. Howe, her release is conclusive against her. After the stable had been built, she released the premises from the lien and operation of the mortgage.- According to the terms of her mortgage, she could not have been required to release, unless, in her opinion, the new mortgage for the part which she was called upon to release, should be fairly proportioned to the whole amount of her encumbrance, nor unless the new mortgage was a first encumbrance. She, then, had the means of protecting herself against the lien claims. When she released the premises, and so enabled Mrs. Kittredge to convey to Mrs. Neumann, the stable, had been built. -She has no equity in the premises, as against the lien claimants.

It is urged, however, that the mortgage taken by her by 'assignment from Mrs. Kittredge, was given to secure purchase money, and it is contended that 'r should therefore have priority over the lien claims. Rut, though given for purchase money, it was given to Mrs. Kittredge on the sale by her to Mrs. Neumann, and at the time of the sale, the liens had attached to the land in the hands of Mrs. Kittredge ; so that she conveyed it to Mrs. Neumann, subject to them. They were encumbrances on the land at the time Mrs. Neumann took her title, and her mortgage for part of the purchase money was subject to them.

As to Mrs. Kittredge, she gave possession of the premises to Mrs. Neumann, in April, 1873, before the deed from her to the latter was delivered; she knew that the stable was being built, for she saw it, daily, while in the course of construction. She of course knew, also, that Mrs. Neumann had no legal title to the land. She might have protected herself against the claims of the builders, by tiling her dissent. She did not see fit to do so. The ninth section of the mechanics’ lien law (Revision) provides, that any married •woman upon whose lands any building shall be erected or repaired, or whereon any fixtures shall be put, shall be taken as consenting to the same, and such building or buildings, and curtilage whereon the same are erected, shall be subject to the lien created by that act; provided always, that in case any married woman shall cause to be filed in the clerk’s office of the county wherein such building or buildings are located, a notice, in writing, describing the property, and that she does not consent to the erection or repairing of such building or buildings on her lands, and that the same is being done against her wishes and consent; then, in such case, the building or buildings and the curtilage whereon the same are erected, of any married woman, shall be free from the lien given by that act, from the time she shall have filed a notice as aforesaid. Mrs. Kittredge, by filing the notice provided for in the act, might have protected herself against the lien. The work was commenced and carried to its completion in her sight. The person who caused the building to be erected, was not a stranger, but was in possession under her. She has no equity to protect her against the lien claims, and the statute gives them priority over her mortgage. That her mortgage was given on account of purchase money, cannot avail her, for the reasons above suggested in connection with the mortgage held by Mrs. Howe by assignment.